Stealing First: The Rehnquist Court Gags on Free Speech

The prospect that Bill Clinton could name more than one new justice to the U.S. Supreme Court has caused celebration among those who feared for the fate of Roe v. Wade. The same prospect has significant implications for the first Amendment, which has also been hanging in a precarious balance since President Reagan and Bush have shifted the Court's center of gravity to the right. For while the nation's attention was absorbed by the decision at the end of the Court's 1991-1992 term upholding the restrictions on abortion enacted in Pennsylvania, the justices were at the same time deciding a less-noticed group of cases that are likely to have profound implications for the First Amendment. Not only did the justices tinker with some fundamental principles governing freedom of speech and the separation of church and state, but the surprising alliances and divisions among them foreshadow an uncertain future for several of those principles. At stake are such important issues as:

  • the extent to which hate speech can be restricted, if at all;
  • whether criminal acts motivated by group hatred can be singled out for sterner punishment than parallel acts that are not so motivated;
  • what kinds of public places are available for demonstrations, leafletting, or solicitations of money for religious and political causes;
  • how much of a fee can be charged for holding parades and rallies;
  • the degree to which the government may become involved with religion before it violates the First Amendment's prohibition against an establishment of religion.

The answers to these questions will be influenced not only by the nature of the cases and merits of the arguments presented to the Court in coming years but by the ideological predispositions and interpersonal dynamics of the justices. Justice Harry Blackmun warned last year that he was 83 and could not remain forever on a Court only one vote short of overturning Roe v. Wade. But replacing Justice Blackmun with a Clinton appointee will only maintain the Court's present philosophical makeup. For the Court to move toward a more vigorous invocation of the First Amendment, not to mention stricter adherence to Roe v. Wade, one or both of the Court's two most senior members, Justice Byron White and Chief Justice William Rehnquist, will also have to leave, and the other relatively senior member, Justice John Paul Stevens, would have to be replaced by someone with more consistently liberal inclinations.

If such personnel changes do not occur, and if the younger and newer justices remain on the Court for a considerable period of time, the risk remains that the narrowing of First Amendment doctrine set in motion or attempted this past term may be reinforced. That will depend in part on whether Chief Justice Rehnquist and Justice White continue, as they have for the two decades they have served together, to vote alike virtually all of the time and almost always uphold the position of the government against claims by individuals that First Amendment rights have been violated. Or will they, as they did in the St. Paul cross-burning case, more frequently vote to strike down a government restriction on speech?

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Will Justice Stevens maintain his record of voting for a high wall of separation between church and state while swinging between supporting and opposing government restraints on freedom of speech? And will Justice Blackmun continue with the generally expansive view of the First Amendment he has taken in recent years, or could he regress to his early days on the Court, when he voted nearly always with his so-called "Minnesota twin," the conservative Chief Justice Warren Burger?

Justice Clarence Thomas will most likely continue, as he has begun, to anchor the Court's extreme right wing, dissenting even when every other justice has recognized an individual right as against the state. He was the lone dissenter when the eight other justices held that a white murderer's mere membership in a racist organization (he had killed a white woman) could not be considered in sentencing him to capital punishment. Justice Antonin Scalia may well persist in alienating the more moderate members of the Court, with his combination of sharp words, Jesuitical logic, and seeming need to be different, while at the same time, and with some important exceptions, hewing to a hard majoritarian line. Will Justices Sandra Day O'Connor and Anthony Kennedy continue to walk in the middle of the road with respect to both freedom of speech and the separation of church and state, straying more often to the right than to the left, sometimes together and sometimes separately? And will Justice David Souter continue down the promising, independent path he has begun to take in First Amendment cases, somewhat more sure-footed regarding the Establishment Clause than with respect to freedom of speech?

Clues to how these questions may be answered and how, as a result, important free speech and church-state issues may be resolved can be found in the First Amendment cases that were decided in May and June of 1992.


R.A.V. v. St. Paul, in which a so-called Bias-Motivated Crimes Ordinance was struck down, produced the most complicated set of opinions, whose effects will not be entirely clear until they have been tested in future cases. The justices left no doubt that burning a cross on somebody else's lawn can properly be punished as an act of trespass or assault, while all agreeing that the St. Paul law against hate speech and hate symbols was unconstitutional. Beyond that, there was no consensus and much ambiguity.

A five-person majority, with Justice Scalia as their spokesperson, argued that the government may ban all so-called "fighting words"--a well-established doctrine of the Court that excludes from First Amendment protection speech having a direct tendency to provoke a fight--but it may not select for punishment only those "fighting words" that express a point of view of which it disapproves. This is what the majority believed the city of St. Paul had done. The other four justices were quite willing to let a city or state decide that within a category of expression, like fighting words, which was already beyond the protection of the First Amendment, some speech believed to be of greater social harm than other speech should be particularly singled out for criminal penalties. Their reason for striking down the St. Paul ordinance was their belief that it reached beyond fighting words to criminalize constitutionally protected speech, namely that which "causes only hurt feelings." Had the law been confined to the punishment of "race-based fighting words" and threats, it would have had their approval.

The vehemence with which the concurring (only in the final judgment) opinions of Justices White, Blackmun, and Stevens took exception to Justice Scalia's opinion on behalf of the majority suggests that there may have been a subtext to this dispute. Although on the surface what was at issue was an ordinance directed only at verbal and symbolic expressions of group hatred, that law was known as the Bias-Motivated Crimes Ordinance (italics mine), and what the city had invoked it for in this instance was indisputably a criminal as well as a symbolic act. (It should be noted here that the defendant was also charged with, and found guilty of, assault --a conviction that was not appealed to the Supreme Court.)

For those who favor more severe penalties for criminal behavior, like assault and battery, arson, or murder that is motivated by group hatred, than for equivalent run-of-the-mill crimes, there is a concern that if one reads between the lines of the majority opinion, one may find the basis for striking down such enhanced penalties. And whether the five justices who signed on to that opinion believe it or not, there are certainly other jurists and legal scholars who have argued that imposing greater punishment on bias-motivated crimes than on the same crimes if not caused by group hatred is just as much a violation of the First Amendment as St. Paul's content-based discrimination among fighting words that the majority condemned. This claim is based on the fact that the only way we know and can prove that a crime has been motivated by group hatred is if the perpetrator has given verbal or symbolic expression to such feelings.

The four justices who took a different route to the conclusion that the St. Paul law was unconstitutional may well have shared the concerns of those who see in the majority opinion a potential basis for invalidating enhanced penalties for hate crimes as well as for hate speech. This is strongly suggested by some of the language of their concurring opinions, which in many ways read more like dissents. Justice Stevens, for example, had this to say:

Conduct that creates special risks or special harms may be prohibited by special rules. Lighting a fire near an ammunition dump or a gasoline storage tank is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot... such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team.

Yet it is not at all certain that the majority intended to, or would be inclined to, foreclose enhanced penalties for hate crimes. Indeed, one of the exceptions to the majority's disapproval of content-based discriminations that Justice Scalia said would be permissible would be a "prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause)." If such discrimination would be allowed with respect to words, it would certainly be allowed with respect to criminal acts. On the other hand, one who favors enhanced penalties for hate crimes can legitimately feel uneasy about the "if it met the requirements of the Equal Protection Clause" caveat, wondering just what that means.

Another serious ambiguity left by the R.A.V. v. St. Paul opinions is what the Court now considers to be punishable "fighting words." Prior to this decision, most analysts assumed that the Supreme Court's original 1942 definition of "fighting words" as those which "by their very utterance inflict injury or tend to incite an immediate breach of the peace" had been amended by decisions in the 1970s that chopped off the first half of the definition and limited it only to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Many observers also assumed that the contemporary reason for the Court's exclusion of fighting words from First Amendment protection is because they may provoke a fight, not because they are barren of ideas.

Both of these premises have now been thrown into some doubt by contradictory statements, not among the various R.A.V. opinions but within the very same opinions. Justice White, for example, reiterates the current understanding of legal scholars that expression which "by its very utterance...causes only hurt feelings, offense, or resentment" or "anger, alarm, or resentment" does not constitute fighting words and is protected by the First Amendment. Indeed, that is why he and the other concurring justices found the St. Paul ordinance to be unconstitutionally overbroad. Yet at another point in his opinion, he objects vehemently to Justice Scalia's having characterized fighting words as a form of "debate" and asserts that in so doing "the majority legitimates hate speech as a form of public discussion." On the one hand, White maintains that speech that causes hurt feelings, offense, resentment, anger, and alarm is constitutionally protected but, on the other hand, suggests that all hate speech is beyond the pale.

The majority opinion is no less self-contradictory. Justice Scalia, in his apparent desire to correct Justice White's assertion that "fighting words are not a means of exchanging views, rallying supporters, or registering a protest," reminds us that when the Court first declared fighting words outside the protections of the First Amendment, it was not because they were "not part of the expression of ideas" but because they were "no essential part of the expression of ideas....Sometimes," Justice Scalia perceptively observes, "they are quite expressive indeed." But then in attempting to justify their exclusion from the marketplace of ideas despite their expressiveness, he turns around and says they are "analogous to a noisy sound truck"--prohibitable not because of the ideas they convey but because of a "`nonspeech' element of communication." What he means by that is anybody's guess. He does not bother to explain it, and it is by no means self-evident, since it is surely the ideas expressed in fighting words ("You Fascist, racketeer, motherfucker, nigger, kike, honkie, fag," or whatever) that produce the problem society seeks (I think short-sightedly) to address through legal prohibitions.


Though Justices White and Scalia were at swords' points in the St. Paul case, with Chief Justice Rehnquist siding with the latter of his two usual allies, the three of them were back in unison, along with Justice Thomas, on all the other First Amendment matters decided by the Court at the end of its 1991-92 term. When they could entice Justice O'Connor or Kennedy, or both, from the middle of the road to their side, they had a majority. Otherwise, they were a dissenting foursome.

The most radical success of these so-called conservatives was in persuading Justice O'Connor to join them in essentially rewriting public forum law. They were not satisfied with deciding that airport terminal buildings were too crowded or specialized a kind of public forum to accommodate the selling of literature by the Hare Krishna, as Justice Kennedy wanted to do in International Society of Krishna Consciousness v. Lee. Instead, in an opinion written for the majority by the Chief Justice, the Court held that the only public properties that will be considered public forums and thus places where government restrictions on speech will be subject to the strictest First Amendment protection by the Court, are those that have as "a principal purpose...the free exchange of ideas" and have "immemorially" and "time out of mind" (quoting a 1939 Court opinion) "been held in trust and used for the purposes of expressive activity." Presumably this means only streets and parks, although, as Justice Kennedy pointed out, "It would seem apparent that the principal purpose of streets and sidewalks, like airports, is to facilitate transportation, not public discourse."

Justice Kennedy was also deeply troubled by the majority's reliance on tradition as a determinant of what constitutes a public forum. As he put it so sensibly:

One of the places left in our mobile society that is suitable for discourse is a metropolitan of the few government-owned spaces where many persons have extensive contact with other members of the public....We have allowed flexibility in our doctrine to meet changing technologies in other areas of constitutional interpretation...and I believe we must do the same with the First Amendment.

As an alternative to the majority's vision, Justice Kennedy:

...would accord public forum status to other forms of property, regardless of its ancient or contemporary origins and whether or not it fits within a narrow historic tradition....The most important considerations...are whether the property shares physical similarities with more traditional public forums, whether the government has permitted or acquiesced in broad public access to the property, and whether expressive activity would tend to interfere in a significant way with the uses to which the government has as a factual matter dedicated the property.

Justice Souter, in his dissenting opinion with respect to the selling of literature, embraced Justice Kennedy's criteria for determining whether a property should be considered a public forum. His impassioned objection to the majority's view was that it "has no warrant in a Constitution whose values are not to be left behind in the city streets that are no longer the focus of community life. If that were the line of our direction, we might as well abandon the public forum doctrine altogether."

As already indicated, Justice Kennedy was willing to go along with the majority's conclusion that solicitations for money could be barred from an airport terminal, even though he believed it to be a public forum, because he thought there was a compelling interest in such a restriction that passed his strict scrutiny test. However, in a related case, Lee v. International Society of Krishna Consciousness, Kennedy came down on the other side, concluding a ban against the distribution of free literature was unconstitutional. In his view, such activity interfered with pedestrian traffic less and did not involve the risk of the fraud and duress associated with the monetary transactions.

Justice O'Connor turned the tables when she joined with Justice Kennedy in switching sides, and along with Justices Blackmun, Stevens, and Souter made up a majority to strike down this prohibition. Although she did not consider airport terminals a traditional public forum whose restrictions are subject to the strictest scrutiny, this did "not mean that the Government can restrict speech in whatever way it likes....restrictions in nonpublic fora are valid only if they are `reasonable'." And because, in this case, "the Port Authority is operating a shopping mall as well as an airport," she felt that, though the ban on money transactions was reasonable, the prohibition against non-monetary solicitations was not.

Justice Souter, as we have seen, joined by Justices Blackmun and Stevens, not only regarded the airport terminal as a public forum in which restrictions on speech were to be judged with the strictest scrutiny but concluded that the bans on both non-monetary and monetary solicitations failed the test.

In the other case affecting public forum law--a case that was heard before Justice Thomas was confirmed--the Court decided 5-3 that a Tennessee law prohibiting the solicitation of votes and the distribution of campaign literature within 100 feet of the entrance to a polling place did not violate the First Amendment. In Burson v. Freeman, only Justice Scalia believed that the streets and sidewalks outside of a polling place are not a public forum and that therefore strict scrutiny of the Tennessee law was not required. From that premise he found it easy to conclude that the restriction at issue was reasonable.

All four of the other justices in the majority, as well as the three dissenters, agreed that such streets and sidewalks are a public forum and that the speech that was banned was "classic political expression" entitled to the strongest possible First Amendment protection. Their disagreement was only over whether the 100-foot restriction passed muster as one that served a compelling interest and was narrowly drawn to serve that interest. Justices Rehnquist, White, Blackmun, and Kennedy thought that it did. Justices Stevens, O'Connor, and Souter thought it did not, calling attention to the many states that are able to preserve the integrity of their electoral process with forbidden zones of 50 feet or less.

Notably, in this case, Justices Blackmun and O'Connor came down on the opposite sides from their Hare Krishna book-selling opinions. Justice Blackmun thinks there is a more compelling interest in keeping political campaigners 100 feet away from a polling place than in keeping the Hare Krishna from selling their literature in airport terminals. Justice O'Connor thinks it is more reasonable to prohibit the latter than to ban the former.

All of this leaves public forum law in an uncertain state of affairs. Four justices--Rehnquist, White, Scalia, and Thomas--are likely to uphold almost any restriction on speech, beyond the streets and parks. Three justices--Souter, Stevens, and Blackmun--will usually view such restrictions with the greatest of suspicion. One justice--Kennedy--holds a generous view of what constitutes a public forum but a somewhat tolerant view of the kinds of restrictions for which the government might find a compelling interest. And one justice--O'Connor--has a narrow view of what constitutes a public forum but a rather tough-minded attitude as to the limitations on speech that can be imposed there, and a willingness to apply somewhat rigorous standards even to the kinds of restrictions that are reasonable on other kinds of public property. Thus the rule of thumb on the use of public property for expressive activity is this: as Justices Kennedy and/or O'Connor go, so will go the Court.


Public forum law is not the only aspect of the First Amendment that is now essentially in the hands of Justices Kennedy and O'Connor. In two other significant First Amendment cases decided in June of 1992 (as well as in the Pennsylvania abortion decision), they joined with Justices Blackmun, Stevens, and Souter to stave off the assault on major Court precedents (like Roe v. Wade) by the Rehnquist-White-Scalia-Thomas foursome.

The first of these two cases, Forsyth County v. Nationalist Movement, raised anew the question of how free, in a monetary sense, is freedom of speech. Although the Court, for half a century, has allowed local governments to charge relatively modest fees for permits to hold parades or rallies, it has been a firmly established principle that laws requiring such permits must not be discretionary--that is, they must not leave to those who issue the permits the power to discriminate among applicants on the basis of the content or viewpoint of their speech. And although the Court had never ruled definitively that the fee had to be nominal, it was implicit in the principle of nondiscrimination that applicants could not be charged a large sum just because their demonstration might require a sizeable number of police to protect them from an anticipated hostile audience.

When confronted with the Forsyth County, Georgia ordinance that allowed county officials, at their discretion, to charge up to $1,000 a day for parades or open-air public meetings, the U.S. Circuit Court of Appeals for the 11th Circuit struck it down on the basis of what they assumed to be the Supreme Court precedents governing such matters. But Chief Justice Rehnquist et al. wanted to reverse that decision because they felt there was nothing in past precedents that limited a local government to charging only a nominal fee and that there was no evidence in the record of the case before them to indicate that the ordinance had, in practice, been utilized in a discriminatory way.

Happily, Justices O'Connor and Kennedy joined with Justices Blackmun, Stevens, and Souter to constitute a majority rejecting that view. Although avoiding the question of whether a permit ordinance could require more than a nominal charge, they vehemently reaffirmed the principle that its implementation could not be "left to the whim of the administrator" and that it could not "depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content." Said Justice Blackmun for the majority, "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob."

Few expected the same five justices to form a majority in Lee v. Weisman. Justice Souter was an unknown because this was his first establishment-of-religion case. But most analysts expected Justices Kennedy or O'Connor, or both, to be on the other side, based on their earlier votes and opinions in cases involving the use of peyote in Native American church rituals and religious displays at public buildings during the Christmas season. Lee v. Weisman raised the specific question of whether the delivery of religious invocations and benedictions by members of the clergy at public middle school and high school graduation ceremonies violated the First Amendment. The larger question, however, was whether the Court, as the fearsome foursome wanted to do, would overturn a two-decade old precedent that for a government practice or law to avoid violating the establishment-of-religion clause of the First Amendment, it has to "(1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion." These principles were enunciated in a landmark 1971 decision called Lemon v. Kurtzman, in which the Court invalidated the use of taxpayers' money to help pay the salaries of parochial school teachers.

Justice Kennedy, in the majority opinion, politely declined the dissenters' invitation to revisit the so-called Lemon tests--an invitation initiated not only by the petitioner in the case but by the Bush administration's friend-of-the-court brief. To the majority, "The government involvement with religious activity in this case" was so "pervasive" and "the potential for divisiveness" so apparent that by any measure, Lemon or otherwise, it had to be prohibited. As for the contention of the petitioner and government amicus brief, supported by the dissenters, that there is nothing coercive about a situation in which students have a choice of sitting in silence during the prayer or not attending the graduation ceremony, Justice Kennedy's reply was that "the argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme....Everyone knows that in our society and in our culture high school graduation is one of life's most significant occasions. A school rule which excuses attendance is beside the point."

The dissenting opinion was Justice Scalia at his nastiest. He characterizes the majority's view that there is psychological pressure on teenagers to attend their graduations and subtle coercion in having to sit or stand through a prayer that is not theirs as a "psycho-journey" with "psychology practiced by amateurs." The Kennedy opinion, says Scalia, "lays waste a tradition that is as old as public-school graduation ceremonies themselves....As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion." Continuing on his tradition hang-up, Justice Scalia maintains that "the history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition....George Washington deliberately made a prayer a part of his first official act as President....Thomas Jefferson...prayed in his first inaugural address....Similarly, James Madison....Most recently, President Bush...made a prayer his first official act as President." Perhaps, snarls Justice Scalia, "the next project for the Court's bulldozer" will be the Pledge of Allegiance.

This was too much for Justice Souter. Perhaps he felt that history, too, should not be practiced by amateurs. In a separate opinion concurring with the majority (though he signed on to the Kennedy opinion as well), joined by Justice Stevens and, significantly, Justice O'Connor, Justice Souter reviews with scholarly precision the history of the Establishment Clause and the separationist beliefs and practices of the Founding Fathers. Directly countering Justice Scalia's examples, he notes that "President Jefferson...steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion clauses," and that "during his first three years in office, James Madison also refused to call for days of thanksgiving and prayer."

It may be that Justice O'Connor joined Justice Souter's opinion not only because it struck back so artfully at Justice Scalia, whose sharp words have so often been directed at her but also because it parted company somewhat from Justice Kennedy (who did not join the opinion). She has had a difference in the past with Justice Kennedy, not yet been resolved by a Court majority, on whether there must be a religiously coercive element in a government practice for it to violate the Establishment Clause. Justice Kennedy has said he thinks there must be, but he did not press the point in Weisman because he felt that coercion was obviously present. Justice Souter, in contrast, now makes clear that he, like Justice O'Connor (and Justice Stevens), believes coercion need not be present for there to be a violation of the separation of church and state; that it is enough if the government has appeared to endorse religion.

Why Justice Blackmun did not also join the Souter opinion and why Justice Souter did not join Justice Blackmun's separate concurring opinion is not at all clear, since Justice Blackmun also agrees that coercion is not necessary and endorsement is sufficient to violate the First Amendment, and since Justices Stevens and O'Connor joined with both. Although there is nothing incompatible between the two opinions, one significant element in Justice Souter's is absent from Justice Blackmun's, and that may be the explanation. Referring to a 1947 Court precedent, Justice Souter says "the Establishment Clause forbids not only state practices that `aid one religion...or prefer one religion over another,' but also those that `aid all religions'....the Establishment Clause forbids state-sponsored prayers in public school settings no matter how nondenominational the prayers may be." Although it is hard to believe that Justice Blackmun, or anyone else who understands the reasons for maintaining a separation of church and state, would find that principle objectionable, it seems to be the only real difference between the two opinions.

Whatever the case may be, there are still only four firm votes (Justice Kennedy excluded) for the position that a coercive element need not be present for a religious activity sponsored or supported by the state to be violative of the First Amendment. At best, then, this is a modest victory for the separation of church and state. If greater victories are to be won on this, or any of the other First Amendment issues we have explored here, it may depend on how much the hard line of Justice Thomas and the sharp words of Justice Scalia offend the moderate temperaments of Justices O'Connor and Kennedy and drive them to the opposing side.


All of this can, of course, change dramatically if the former professor of constitutional law, Bill Clinton, has the opportunity to name replacements not only for Justice Blackmun but for one or more of the other justices. Before the election, Clinton said that a primary criterion for such selections will be a commitment to the Bill of Rights, and he specifically mentioned freedom of speech and separation of church and state.

Assuming that Clinton gets that chance, what might proponents of freedom of speech hope for from such a Court? At the very least, the "fighting words" exception should once again be unequivocally limited to speech that provokes violence from the individual to whom it is personally addressed. Far better would be to abandon the exception altogether and punish only those who swing the first fist and not those who hurl the last epithet. But even under the former and less radical alternative, which the Supreme Court for more than twenty years has felt to represent an adequate balance between freedom of speech and social order, most of the hate speech incidents that occur, whether on or off the college campuses, would be protected by the First Amendment, as they should be. That is so because most of the time those hateful messages are addressed to the world at large, through posters, the display of symbols, or utterances to third parties, rather than by words directed to the target in face-to-face confrontations where the victim is either likely to respond, or capable of responding, by starting a fight.

Enhancing a penalty for criminal behavior because it was motivated by group hatred poses difficult questions about which strong supporters of freedom of speech can and do differ. Some view it as a serious intrusion on the First Amendment to punish such conduct more severely than a comparable run-of-the-mill crime because the evidence that a hate crime has been committed is necessarily derived from the perpetrator's beliefs and verbal expression of those beliefs. Others argue that hate crimes pose a greater danger to society than similar offenses that are not so motivated; heavier penalties are therefore justified despite, or even because of, the ideological underpinnings of the behavior. Thus a Supreme Court ruling one way or the other would not necessarily be viewed as a fundamental First Amendment error.

The Court should expand, rather than contract, the kinds of public properties, paid for with my money and that of other taxpayers, that are regarded as public forums for speech. Justice Kennedy had it right when he said that the primary question should be "whether expressive activity would tend to interfere in a significant way with the uses to which the government has dedicated the property." Justice Thurgood Marshall said essentially the same thing two decades ago in a case involving the picketing of a school, Grayned v. Rockford, when he wrote, for a majority of the Court, "The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time." Unfortunately, the Court has since made it more complicated than that, and Kennedy, having started from such a desirable premise, was so willing to believe it to be violated by a handful of Hare Krishna selling their literature in a vast airport terminal.

Justice Blackmun too had it right when he struck down Forsyth County's permit fee ordinance, saying that speech should not be "financially burdened...simply because it might offend a hostile mob." It is too bad that he and his colleagues in the majority chose not to accept the challenge of the dissenters to rule also on the question of whether fees for permits to engage in expressive activity must be kept at a nominal level. The dissenters insisted that they need not be, and perhaps the majority ducked that question because there were insufficient votes for declaring otherwise. It may be that a Clinton-altered Court will have the fortitude to do so.

Finally, is it too greedy to wish for a day when the establishment-of-religion clause of the First Amendment will be more like the "wall of separation between church and state" that Thomas Jefferson envisioned and less like the wall that former Chief Justice Burger has dismissed as a mere "metaphor"? I lose no sleep over coins that say "In God We Trust" or members of the clergy giving their blessings to presidential inaugurations; I realize political pragmatism dictates that these traditions continue. But I take much more seriously Christmas nativity scenes on the property of public buildings (even if surrounded by a secular Santa Claus and reindeer), crosses on city or state-owned mountaintops or on the shoulder patches of police uniforms, and government vouchers that would pay tuition to attend parochial schools. If Justices O'Connor's and Souter's "endorsement test" proves insufficiently tough to flunk those practices, I would hope for new justices with the mortar to fill such chinks in Mr. Jefferson's wall.

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